Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NOS.5318-5319 OF 2013

(@ S.L.P.(C) Nos.26341-26342 of 2011)

Vikas Pratap Singh and Ors. Appellants

Versus

State of Chhattisgarh and Ors. Respondents

WITH

CIVIL APPEAL NO. 5320 OF 2013

(@ S.L.P.(C) No. 26349 OF 2011)

Rajendra Singh Kanwar and Ors. Appellants

Versus

State of Chhattisgarh and Ors. Respondents

AND

CONTEMPT PETITION NO. 433 OF 2011

IN

CIVIL APPEAL NO.5320 OF 2013

(@ S.L.P.(C) No. 26349 OF 2011)

Rajendra Singh Kanwar and Ors. Petitioners

Versus

Rahul Bhagat and Ors. Respondents/

Contemnors

O R D E R

1

Page 2 Civil Appeal Nos.5318-5319 of 2013 (@ S.L.P. (C)

Nos. 26341-26342 of 2011)

WITH

Civil Appeal No.5320 of 2013 (@S.L.P. (C) No.

26349 of 2011)

H.L. Dattu, J.

1.Leave granted in all the Special Leave

Petitions.

2.These batch of appeals are directed against the

common judgment and order passed by the High

Court of Chhattisgarh in Writ Petition Nos.

3087, 3204 and 4229 of 2009, dated 06.09.2011,

whereby and whereunder the High Court has

dismissed the Writ Petitions filed by the

appellants herein and confirmed the revised

merit list drawn after the selective re-

evaluation of the answer scripts of all the

candidates who had appeared in the Main

Examination for the posts of Subedars, Platoon

Commanders and Sub-Inspectors in the

respondent-State of Chhattisgarh.

2

Page 3 3.The appellants before us (in SLP (C) Nos.

26341-26342 of 2011 and 26349 of 2011) are the

26 candidates aggrieved by the cancellation of

the first merit list and the redrawal of the

second revised merit list by the Chhattisgarh

Professional Examination Board (for short

“respondent-Board”), whereby their appointments

to the aforesaid posts have been cancelled.

4.The facts in a nutshell are as under:

On 18.09.2006, an advertisement inviting

applications for recruitment to 380 posts of

Subedars, Platoon Commanders and Sub-Inspectors

in the respondent-State was issued by the Police

Headquarters, Chhattisgarh. For the said purpose,

the Preliminary Examination was conducted on

24.12.2006 and the successful candidates thereat

were called for the Main Examination held in two

parts as Paper I and II on 04.02.2007 and

05.02.2007, respectively. After conducting

physical examination and personal interviews, the

3

Page 4 final merit list of candidates was published on

08.04.2008, whereby all the appellants herein

were selected. Based on the said merit list, the

appointment letters were issued to the selected

candidates including the appellants on various

dates between 21.08.2008 and 15.09.2008. In the

meanwhile, the Inspector General of Police and

the respondent-Board received complaints in

respect of defects/mistakes in several questions

of the Main Examination Papers. The respondent-

Board constituted an Expert Committee to inquire

into the complaints. Upon examination of the two

Papers, two sets of defects were noticed: (a)

eight questions in Paper II itself were incorrect

and (b) model answers for evaluation of answer

scripts to another eight questions of Paper II

were incorrect. The respondent-Board directed for

deletion of the first set of eight questions in

Paper II and preparation of correct model answers

key for objective questions in Papers I and II

and accordingly carried out re-evaluation of the

4

Page 5 answer scripts of the candidates. On 27.06.2009 a

new revised merit list was published wherein the

names of twenty six appellants did not figure at

all and accordingly, the appointment of the

appellants were cancelled by the respondent-

State.

5.At the time of publication of the revised merit

list, the appellants were already undergoing

training along with other candidates who were

selected in the first list. The appellants

aggrieved by the cancellation of the aforesaid

appointment in the wake of revised merit list

filed several Writ Petitions before the learned

Single Judge inter alia challenging the

validity of the revised merit list on the

ground that decision of re-evaluation by the

respondent-Board was arbitrary and irrational

and therefore the said list requires to be

quashed.

6.The learned Single Judge while entertaining the

5

Page 6 Writ Petitions had issued an interim order

directing the respondent-State not to take any

coercive steps against the appellants and

further to allow them to continue their

training programme. The learned Single Judge

has observed that a substantial question of

public importance has arisen in the matter and

therefore, referred the matter to the Division

Bench with a request to consider and decide the

following question of law of public importance:

“Whether the VYAPM (respondent-Board)

after publication of the select list

and passing of the appointment orders

also on the basis of evaluation of

questions, could have done the exercise

of re-evaluating the answers after

editing and reframing answers, and

prepare the second select list for

fresh recruitment of the candidates,

cancelling the first select list?”

6

Page 7 7.The Division Bench has delved into merits of

the matter at length and analyzed the arguments

advanced by both the parties. The Division

Bench has noticed the pattern of the Main

Examination to include two separate papers:

Paper I comprising of both objective and

subjective type questions- 7 and 4 in number in

Hindi and English languages, respectively and

Paper II comprising of 150 objective-type

questions of General Knowledge. Further that

the Expert Committee constituted by the

respondent-Board examined both Paper I and II

and found irregularities only in respect of the

eight incorrect objective questions of Paper II

and model answers to another eight questions in

model answers key of Paper II, pursuant to

which the respondent-Board re-evaluated Paper

II and only objective questions of Paper I on

basis of fresh model answers key and in toto

only sixteen questions and answers of Paper II

were interfered with upon such re-evaluation.

7

Page 8 The eight incorrect questions were deleted and

their marks were distributed on the pro-rata

basis in accordance with Clause 14 of the

Examination Conduct Rules (for short “the

Rules”) of the respondent-Board and the other

eight questions, answers to which were

incorrect in the first model answers key were

re-evaluated on the basis of new model answers

key and marks were awarded accordingly. The

Division Bench has observed that since all the

questions so re-evaluated were objective type

carrying fixed marks for only one correct

answer, the possibility of difference in

marking scheme or prejudice during re-

evaluation does not arise and therefore has

concluded that no irregularity or illegality

could be said to have crept in the manner and

method of re-evaluation carried out by the

respondent-Board and that the said decision of

re-evaluation was justified, balanced and

harmonious and has not caused any injustice to

8

Page 9 the candidates and therefore cannot be

interfered with unless found arbitrary,

unreasonable or malafide which is not the case

at hand. In consequence of the aforesaid

conclusion, the Division Bench has thought it

fit to uphold the cancellation of appointments

of the appellants qua the first list and

accordingly dismissed the writ petitions.

8.It is the correctness or otherwise of the said

judgment and order passed by the High Court

which is before us in these appeals by special

leave.

9.We have heard Shri P.P. Rao and Shri Ravindra

Srivastava learned Senior Counsels appearing

for the appellants and Shri Mukul Rohtagi and

Shri P.S. Patwalia learned Senior Counsels

appearing for the respondents and have also

carefully perused the documents on record.

10.Shri Rao would submit that the decision of the

9

Page 10 respondent-Board to re-evaluate the answer

scripts in the absence of any statutory

provisions for the same and subsequent

publication of a revised merit list cancelling

the appointment of the appellants is arbitrary

and has caused prejudice to the appellants. He

would further submit that Clause 14 of the

Rules providing for procedure to be adopted in

respect of erroneous objective questions is of

a wider ambit and includes exigencies such as

model answers to examination questions being

incorrect and therefore, the respondent-Board

instead of directing re-evaluation of answer

scripts ought to have acted in compliance with

the said statutory provision.

11.Per contra, Shri Rohtagi, learned Senior

Counsel would submit that the re-evaluation of

answer scripts affected three genre of

objective questions: firstly, the eight

questions in Paper II which were found

incorrect; secondly, the eight questions in

10

Page 11 Paper II answers to which were found to be

incorrect in the model answers key and thirdly,

the questions in Paper I to which no model

answers were provided for prior to the

appointment of the Expert Committee. He would

submit that the first set of eight questions

was deleted and marks were awarded on a pro-

rata basis in accordance with Clause 14 of the

Rules. The second set of eight questions were

re-evaluated on the basis of corrected model

answers key and the third set of questions in

Paper I, all being objective type, were re-

evaluated with the aid of model answers key

prepared by the Expert Committee. He would

submit that the decision of the respondent-

Board to re-evaluate the answer scripts has not

caused any prejudice to the appellants-herein

but in fact identified and rectified the

irregularities in the earlier evaluation of

answer scripts of the candidates and therefore,

such decision cannot be termed as arbitrary,

11

Page 12 vindictive and whimsical.

12.In these appeals what falls for our

consideration is whether the decision of the

respondent-Board in directing re-evaluation of

the answer scripts has caused any prejudice to

the appellants appointed qua the first merit

list, dated 08.04.2008.

13.At the outset, before delving into the merits

of the submissions made by the learned Senior

Counsels, the relevant statutory provisions and

the re-evaluation scheme requires to be

noticed.

14.It is not in dispute nor it can be disputed

that for the purposes of re-evaluation, the

eight questions found incorrect were deleted

and their marks were rightly allotted on a pro-

rata basis in accordance with Clause 14 of the

Rules which reads as under:

“Clause 14. Wrong (Defective) objective

type question, its cancellation and marks

to be allotted in lieu of it.

12

Page 13 After the exams, the Chhattisgarh

Professional Examination Board (VYAPAM)

gets each question examined by the subject

expert. If, upon examination by the

subject experts, the questions are found

defective/ wrong, it is rejected.

Questions may be rejected on the following

reasons:

(i)if the structure of the question is

wrong;

(ii)out of the options given as answers,

if more than one options are correct.

(iii) If no option is correct.

(iv)If there is difference in Hindi and

English translation of any question

because of which different meaning is

drawn from both and one correct

answer could not be ascertained.

(v)If any other printing mistake is

there because of which correct answer

is not ascertainable or more than one

option is correct.

On such rejection of question upon the

recommendation of Subject Expert

Committee, on such questions the marks

would be awarded by the Chhattisgarh

Professional Examination Board (VYAPAM)

to the candidates in proportion to their

marks obtained in the particular question

paper. Whether the rejected question has

been or not been attempted. The question

papers in which the questions have been

rejected, their evaluation procedure

would be as follows, if in any question

papers out of 100 questions two questions

are rejected and after evaluation

candidate secures 81 marks out of 98

questions then in such case calculation

of marks would be done as (81*100)/100-2=

13

Page 14 82.65. On which basis merit would be

determined. ”

The other eight questions whose answers were

found incorrect in the earlier model answers key

were re-evaluated on the basis of revised model

answers key. In Paper I, only the objective type

questions were re-evaluated with the aid of model

answers key prepared and provided to the

examiners for the first time after the inquiry by

the respondent-Board.

15.The submission made by Shri Rao in respect of

Clause 14 being an inclusive provision and thus

providing ample room for inclusion of similar

irregularities that may occur in conduct of

competitive examinations fails to convince us.

Clause 14 contemplates and enlists five

specific instances wherein the question in the

examination paper itself is wrong and thus

could not possibly be evaluated to have any

correct answer. It is in such circumstances

14

Page 15 that it provides for deletion of such incorrect

questions and the consequent pro-rata

distribution of the marks allocated to them.

The said Rule is clear and only provides for

the procedure in case of discrepancies in

questions only. It does not leave any room for

inclusion of the exigency such as errors in

answers/model answers and therefore, the

respondent-Board has rightly re-evaluated only

eight incorrect questions as per Clause 14.

16.In respect of the respondent-Board’s propriety

in taking the decision of re-evaluation of

answer scripts, we are of the considered view

that the respondent-Board is an independent

body entrusted with the duty of proper conduct

of competitive examinations to reach accurate

results in fair and proper manner with the help

of Experts and is empowered to decide upon re-

evaluation of answer sheets in the absence of

any specific provision in that regard, if any

15

Page 16 irregularity at any stage of evaluation process

is found. (See: Chairman, J & K State Board of

Education v. Feyaz Ahmed Malik and others,

(2000) 3 SCC 59 and Sahiti and Ors. v. The

Chancellor, Dr. N.T.R. University of Health

Sciences and Ors., (2009) 1 SCC 599) . It is

settled law that if the irregularities in

evaluation could be noticed and corrected

specifically and undeserving select candidates

be identified and in their place deserving

candidates be included in select list, then no

illegality would be said to have crept in the

process of re-evaluation. The respondent-Board

thus identified the irregularities which had

crept in the evaluation procedure and corrected

the same by employing the method of re-

evaluation in respect of the eight questions

answers to which were incorrect and by deletion

of the eight incorrect questions and allotment

of their marks on pro-rata basis. The said

decision cannot be characterized as arbitrary.

16

Page 17 Undue prejudice indeed would have been caused

had there been re-evaluation of subjective

answers, which is not the case herein.

17.In view of the aforesaid, we are of the

considered opinion that in the facts and

circumstances of the case the decision of re-

evaluation by the respondent-Board was a valid

decision which could not be said to have caused

any prejudice, whatsoever, either to the

appellants or to the candidates selected in the

revised merit list and therefore, we do not

find any infirmity in the judgment and order

passed by the High Court to the aforesaid

extent.

18.It is brought to our notice that in view of

the interim orders passed by the learned Single

Judge the appellants have now completed their

training and have been in service for more than

three years. Therefore the only question which

survives for our consideration and decision is

17

Page 18 whether after having undergone training and

assumed charge at their place of posting the 26

appellants be ousted from service on the basis

of cancellation of their appointment qua the

revised merit list.

19.Shri Rao would submit that the case of these

appellants requires sympathetic consideration

by this Court, since the appointment of

appellants on the basis of a properly conducted

competitive examination cannot be said to have

been affected by any malpractice or other

extraneous consideration or misrepresentation

on their part. The ouster of 26 appellants from

service after having successfully undergone

training and serving the respondent-State for

more than three years now would cause undue

hardship to them and ruin their lives and

careers. He would further submit that an

irretrievable loss in terms of life and

livelihood would be caused to eight appellants

amongst them who have now become over aged and

18

Page 19 have also lost the opportunity to appear in the

subsequent examinations. He would place

reliance upon the decision of this Court in

Rajesh Kumar and Ors. v. State of Bihar and

Ors., 2013(3) SCALE 393 wherein this Court has

directed the respondent-State to re-evaluate

the answer scripts on the basis of correct

model answers key and sympathetically

considered the case of such candidates who,

after having being appointed in terms of

erroneous evaluation and having served the

State for considerable length of time, would

not find place in the fresh merit list drawn

after re-evaluation and directed the

respondent-State against ousting of such

candidates and further that they be placed at

the bottom of the fresh merit list.

20.The pristine maxim of fraus et jus nunquam

cohabitant (fraud and justice never dwell

together) has never lost its temper over the

centuries and it continues to dwell in spirit

19

Page 20 and body of service law jurisprudence. It is

settled law that no legal right in respect of

appointment to a said post vests in a candidate

who has obtained the employment by fraud,

mischief, misrepresentation or malafide. ( See:

District Collector & Chairman, Vizianagaram

Social Welfare Residential School Society,

Vizianagaram and another v. M. Tripura Sundari

Devi, (1990) 3 SCC 655, P. Chengalvaraya Naidu

v. Jagannath and others, (1994) 1 SCC 1

and Union of India and others v. M. Bhaskaran,

1995 Suppl. (4) SCC 100). It is also settled

law that a person appointed erroneously on a

post must not reap the benefits of wrongful

appointment jeopardizing the interests of the

meritorious and worthy candidates. However, in

cases where a wrongful or irregular appointment

is made without any mistake on the part of the

appointee and upon discovery of such error or

irregularity the appointee is terminated, this

Court has taken a sympathetic view in the

20

Page 21 light of various factors including bonafide of

the candidate in such appointment and length of

service of the candidate after such appointment

(See: Vinodan T. and Ors. v. University of

Calicut and Ors .,(2002) 4 SCC 726 ; State of

U.P. v. Neeraj Awasthi and Ors. (2006) 1 SCC

667).

21.In Girjesh Shrivastava and Ors. v. State of

M.P. and Ors., (2010) 10 SCC 707 , the High

Court had invalidated the rule prescribing

selection procedure which awarded grace marks

of 25 per cent and age relaxation to the

candidates with three years’ long non-formal

teaching experiences as a consequence of which

several candidates appointed as teachers at the

formal education institutions under the said

rule stood ousted. This Court while concurring

with the observations made by the High Court

kept in view that upon rectification of

irregularities in appointment after a

21

Page 22 considerable length of time an order for

cancellation of appointment would severely

affect economic security of a number of

candidates and observed as follows:

“28. …Most of them were earlier teaching

in Non-formal education centers, from

where they had resigned to apply in

response to the advertisement. They had

left their previous employment in view

of the fact that for their three year

long teaching experiences, the interview

process in the present selection was

awarding them grace marks of 25 per

cent. It had also given them a

relaxation of 8 years with respect to

their age. Now, if they lose their jobs

as a result of High Court's order, they

would be effectively unemployed as they

cannot even revert to their earlier jobs

in the Non-formal education centers,

which have been abolished since then.

This would severely affect the economic

security of many families. Most of them

are between the age group of 35-45

years, and the prospects for them of

finding another job are rather dim. Some

of them were in fact awaiting their

salary rise at the time of quashing of

their appointment by the High Court.”

Therefore, mindful of the aforesaid circumstances

this Court directed non-ouster of the candidates

22

Page 23 appointed under the invalidated rule.

22.In Union of India (UOI) and Anr. v. Narendra

Singh, (2008) 2 SCC 750 this Court considered

the age of the employee who was erroneously

promoted and the duration of his service on the

promoted post and the factor of retiring from

service on attaining the age of superannuation

and observed as follows:

“31. The last prayer on behalf of

respondent, however, needs to be

sympathetically considered. The

respondent is holding the post of Senior

Accountant (Functional) since last

seventeen years. He is on the verge of

retirement, so much so, that only few

days have remained. He will be reaching

at the age of superannuation by the end

of this month i.e. December 31, 2007. In

our view, therefore, it would not be

appropriate now to revert the respondent

to the post of Accountant for very short

period. We, therefore, direct the

appellants to continue the respondent as

Senior Accountant (Functional) till he

reaches the age of superannuation i.e.

upto December 31, 2007. At the same time,

we hold that since the action of the

Authorities was in accordance with

23

Page 24 Statutory Rules, an order passed by the

Deputy Accountant-General canceling

promotion of the respondent and reverting

him to his substantive post of Accountant

was legal and valid and the respondent

could not have been promoted as Senior

Accountant, he would be deemed to have

retired as Accountant and not as Senior

Accountant (Functional) and his

pensionary and retiral benefits would be

fixed accordingly by treating him as

Accountant all through out.

32. For the foregoing reasons, the appeal

is partly allowed. Though the respondent

is allowed to continue on the post of

Senior Accountant (Functional) till he

reaches the age of retirement i.e.

December 31, 2007 and salary paid to him

in that capacity will not be recovered,

his retiral benefits will be fixed not as

Senior Accountant (Functional) but as

Accountant. In the facts and

circumstances of case, there shall be no

order as to costs.”

23.This Court in Gujarat State Deputy Executive

Engineers' Association v. State of Gujarat and

Ors., 1994 Supp (2) SCC 591 although recorded a

finding that appointments given under the `wait

list' were not in accordance with law but

refused to set aside such appointments in view

of length of service (five years and more).

24

Page 25 24.In Buddhi Nath Chaudhary and Ors. v. Akhil

Kumar and Ors., (2001) 2 SCR 18 , even though

the appointments were held to be improper, this

Court did not disturb the appointments on the

ground that the incumbents had worked for

several years and had gained experience and

observed:

"We have extended equitable

considerations to such selected

candidates who have worked on the

posts for a long period."

(See: M.S. Mudhol (Dr.) and Anr. v. S.D. Halegkar

and Ors., (1993) II LLJ 1159 SC and Tridip Kumar

Dingal and Ors. v. State of West Bengal and Ors.,

(2009) 1 SCC 768)

25.Admittedly, in the instant case the error

committed by the respondent-Board in the matter

of evaluation of the answer scripts could not

be attributed to the appellants as they have

neither been found to have committed any fraud

or misrepresentation in being appointed qua the

25

Page 26 first merit list nor has the preparation of the

erroneous model answer key or the specious

result contributed to them. Had the contrary

been the case, it would have justified their

ouster upon re-evaluation and deprived them of

any sympathy from this Court irrespective of

their length of service.

26.In our considered view, the appellants have

successfully undergone training and are

efficiently serving the respondent-State for

more than three years and undoubtedly their

termination would not only impinge upon the

economic security of the appellants and their

dependants but also adversely affect their

careers. This would be highly unjust and

grossly unfair to the appellants who are

innocent appointees of an erroneous evaluation

of the answer scripts. However, their

continuation in service should neither give any

unfair advantage to the appellants nor cause

undue prejudice to the candidates selected qua

26

Page 27 the revised merit list.

27. Accordingly, we direct the respondent-State

to appoint the appellants in the revised merit

list placing them at the bottom of the said

list. The candidates who have crossed the

minimum statutory age for appointment shall be

accommodated with suitable age relaxation.

28.We clarify that their appointment shall for

all intents and purpose be fresh appointment

which would not entitle the appellants to any

back wages, seniority or any other benefit

based on their earlier appointment.

29.The order passed by the High Court shall stand

modified to the above extent. Appeals disposed

of.

30.There shall be no order as to costs.

Contempt Petition No. 433 of 2011 in Civil Appeal

No.5320 of 2013 (@ S.L.P. (C) No. 26349 of 2011)

In view of the orders passed in Special

27

Page 28 Leave Petition (C) Nos. 26341-26342 of 2011 and

Special Leave Petition (C) No. 26349 of 2011,

nothing survives in this Contempt Petition for

our consideration and decision. The Contempt

Petition is accordingly dismissed as having

become infructuous.

Ordered accordingly.

................

....J.

[H.L. DATTU]

......

..............J.

[JAGDISH SINGH KHEHAR]

NEW DELHI;

JULY 09, 2013.

28